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In Snyder v. Phelps, high court avoided Internet speech issue

An attorney for Albert Snyder contends the Supreme Court should have considered an online 'epic' written about his son by Westboro Baptist Church. Some say the court will address the issue in the future.

Albert Snyder testified that he was physically ill for hours after reading an internet posting about his son, Marine Lance Cpl. Matthew Snyder, written by a Westboro Baptist Church member who was summarizing its demonstration at Matthew Snyder's funeral in 2006. Albert Snyder's lawyers criticized the Supreme Court for not considering the posting in deciding his case against Westboro, but the court said the lawyers didn't make it enough of an issue for the justices to consider. (Daily Record/Sunday News -- Bil Bowden)

York, PA -
The U.S. Supreme Court added a muscular ruling last week to its canon shielding fringe speech, while skipping a stickier First Amendment issue the case presented:

What can you say about someone on the Internet?

A lawyer in the case contends the justices should have considered whether the Constitution permits hurtful online speech targeted at a private person.

"They had an opportunity here to guide people's conduct -- to explain what is and is not allowed in terms of targeted characterizations of other people on the Internet," said Craig Trebilcock, who represented Albert Snyder of Spring Garden Township.

"We are left with no clarity and no standard to guide future conduct, and that is something I did not expect."

Members of the Kansas-based Westboro Baptist Church picketed outside his Maryland funeral with signs such as "God Hates Dead Soldiers." Westboro believes that military deaths are God's punishment for the country's tolerance of homosexuality.

Weeks after the funeral, a picketer recapped the protest and denounced the Snyder family on Westboro's website in a posting that litigants later dubbed the "epic."

Replete with Bible verses, the epic said, in part, that Albert Snyder and his ex-wife "taught Matthew to defy his Creator," "raised him for the devil" and "taught him that God was a liar.

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Albert Snyder sued Westboro for invasion of privacy, intentional infliction of emotional distress and civil conspiracy. He won a sizable jury award that was later overturned.

The Supreme Court ruled 8-1 Wednesday that the First Amendment protected the funeral picketing because it addressed matters of "public concern" -- for example, the fate of the nation, war and gays in the military.

The majority's analysis did not consider the epic, saying Snyder's attorneys had not pursued that line of argument at the high court and that "Internet postings may raise distinct issues in this context."

The sole dissenter, Justice Samuel Alito, called that reasoning "strange."

Why not consider the epic?

Lower courts considered, among other things, how the epic affected Albert Snyder's emotional state; he testified that he threw up and cried for hours after reading the post.

Adopting Albert Snyder's argument, Alito said the epic went "far beyond" commentary of public concern, attacking Matthew Snyder as a Catholic and a Marine.

"While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder's purely private conduct does not," Alito wrote.

Westboro had argued the epic, like the picket, was public speech on public matters in a public forum, and therefore, protected by the First Amendment.

"All the posting was was a continuation of the picket," said Margie J. Phelps, who represented Westboro.

The justices didn't address the epic because they considered the picket the main issue in the case, she said.

Trebilcock believes that, without the epic, the case is merely "a group with unpopular signs on a street corner."

"Well, if that had been our case going in, we might not even have brought the case because mean people with unpopular signs on a street corner is generally recognized as First Amendment-protected," he told WITF-FM.

The high court doesn't have to address an issue if a party failed to raise it specifically when petitioning the justices to take the case.

At oral arguments, the justices questioned both sides about the epic. But writing for the majority, Chief Justice John Roberts reduced the issue to a footnote, saying Snyder's lawyers only devoted a paragraph to the epic in their brief.

Trebilcock maintains the epic was plainly before the court.

"Because they are the Supreme Court, they can say it wasn't addressed enough," he said. "What would be enough? Two paragraphs? The reasoning is a little thin."

Bruce Ledewitz, a law professor at Duquesne University in Pittsburgh, said the justices didn't need to consider the epic because they decided the case on other grounds.

"Most of (Westboro's) activities are protected (by the First Amendment), and, given that holding, the jury verdict cannot stand. And that's the only issue before the court," he said.

'Treading warily' on Internet speech

Clearly, a majority of justices did not want to discuss whether someone can sue for infliction of emotional distress regarding speech on the Internet, Ledewitz said.

William Van Alstyne, a First Amendment scholar at the College of William & Mary, agreed, saying the justices might be waiting for a case that presents the issue more squarely.

"If you have that issue in another case, it could come out the other way," Van Alstyne said, noting the epic also seemed of secondary importance to the lower courts.

Clay Calvert, who teaches at the University of Florida, said analyzing the epic could have made the court's decision more complex and fractured Roberts' eight-justice majority.

Where the picket signs addressed matters of "public concern" and were, therefore, protected speech, the epic was "a much different case, as it much more targets Mr. Snyder," said Calvert, who filed a brief on behalf of Westboro.

Eugene Volokh, a law professor at the University of California at Los Angeles, believes Snyder's strongest argument was to limit speech near funerals.

"It's not like the 'epic' makes (his) case materially stronger," Volokh, who also filed a brief on behalf of Westboro, wrote in an e-mail.

"Plaintiff is trying to suppress speech that's physically and temporally far from a funeral -- a very hard case ... to make."

Justice Stephen Breyer, who wrote a concurring opinion, emphasized that the court's holding was restricted to the picketing and did not examine the effect of Internet postings.

During questioning at oral arguments, Breyer was clearly interested in a rule to guide lower courts in cases dealing with cyber-harassment and other types of Internet speech.

He wanted to know to what extent someone can post something "very obnoxious" on the Internet "where the victim is likely to see it ..."

"I don't know what the rules ought to be there," he said. "That is, do you think that a person can put anything on the Internet?"

Neil Richards, a law professor at Washington University in St. Louis, said the court's note about "distinct issues" arising from Internet postings suggests they might create a legal category of cyber-harassment in the future.

"Given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice," he wrote on the blog ConcurringOpinions.com.

"It is interesting to see the court treading warily in the Internet speech context, however."

'Epic' considerations

Trial court

In addition to the funeral picket, a Maryland jury in 2007 considered as evidence an Internet posting created by Westboro Baptist Church about its 2006 protest at the funeral of Marine Lance Cpl. Matthew Snyder.

Albert Snyder's attorneys countered Westboro's argument that the posting -- later dubbed the "epic" -- was protected by the First Amendment. They argued it personally targeted the Snyder family, for instance, saying parents Albert and Julie had "taught Matthew to defy his Creator, to divorce, and to commit adultery."

The jury found Westboro liable for intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy.

Appeals court

The U.S. 4th Circuit Court of Appeals concluded the online posting was protected by the First Amendment because it contained rhetorical hyperbole and not actual, proven facts about Snyder and his son.

The court said the epic could not be "divorced from the general context of the funeral protest" and was "primarily concerned with (Westboro's) strongly held views on matters of public concern."

Suzanne B. Goldberg, the director of the Center for Gender and Sexuality Law at Columbia University, told Salon that "insults are not actionable profanity -- and although Westboro says horrific things, its language is not what we typically treat as profanity. ...

"And the use of 'faggot' in this context, while offensive, ... (is) a nasty insult. But this country is in part founded on a view that it is better to protect people's ability to spew hateful insults than to let the government block speech."

Snyder predicts violence against Westboro

Albert Snyder of Spring Garden Township told CNN last week he believes the actions of the Kansas-based Westboro Baptist Church will eventually spark violence.

"Something is going to happen," Snyder said Thursday. "Somebody is going to get hurt."

"You have too many soldiers and Marines coming back with post-traumatic stress syndrome, and they (the Westboro protesters) are going to go to the wrong funeral, and the guns are going to go off."

"And when it does," Snyder added, "I just hope it doesn't hit the mother that's burying her child or the little girl that's burying her father or mother."